Health, Safety and Whistleblowing Policies

September 17, 2014

In November 2013, the Whistleblowing Commission published a report into the effectiveness of current arrangements in UK workplaces that enable employees to disclose information on wrongdoing. This independent commission concluded that so-called “whistleblowing” plays an important role in achieving effective governance and an open culture.

However, the evidence collated for the report found that although the majority of respondents have arrangements in place, a third “did not think or did not know whether those arrangements were effective”.

From a health and safety perspective, arrangements and a culture that enable employees to make a disclosure, primarily to the employer, rather than to a relevant external organisation can play a significant part in engaging and involving employees in the management of health and safety.

Health, safety and whistleblowing

Following a number of high profile events, legislation was introduced so that if workers bring information about a wrongdoing to the attention of their employers or a relevant organisation, they are protected in certain circumstances.

The Public Interest Disclosure Act 1998 (PIDA) protects employees if they disclose malpractice in an organisation that is in the public interest.

PIDA amended the Employment Rights Act 1996 by introducing new rights of protection for workers not to suffer detriment or dismissal for raising concerns (blowing the whistle) on their employers’ fraudulent, criminal or dangerous activities.

Protection relates to a qualifying disclosure of information by a worker about specified categories of wrongdoing or malpractice including those “endangering the health and safety of any individual”.

From a health and safety perspective, PIDA widened the class of people who have protection while making a disclosure and “provides protection to workers raising health and safety concerns with the enforcing authority”, this being the Health and Safety Executive (HSE) or the local authority where it is the enforcing authority.

PIDA and its associated guidance encourage the resolution of problems within the workplace, before they are raised outside the workplace.

However, there have been high profile cases where there has been a clear failure to listen. The Public Inquiry into the Mid-Staffordshire NHS Foundation Trust found that the Board “did not listen sufficiently to its patients and staff or ensure the correction of deficiencies brought to the Trust’s attention”.

Chair of the Inquiry, Robert Francis, recommended that reporting of incidents of concern “needs not only to be encouraged but insisted upon”.

Whistleblowing Commission Report

Against the background of cases such as that detailed above, the charity Public Concern at Work set up an expert independent commission to review current legal, governance and best practice arrangements in relation to disclosure.

The Whistleblowing Commission reported in November 2013 on its findings. It concluded that “the main reason enlightened organisations implement whistleblowing arrangements are that they recognise that it makes good business sense” and will be better able to:

Deter wrongdoing

Pick up any problems at an early stage

Ensure critical information gets to the right person/s who can act accordingly

Demonstrate to stakeholders good attitude towards corporate responsibility and accountability

Reduce anonymous and malicious leaks

Minimise costs and compensation occurring from unwanted events

Maintain and enhance its reputation.

Although the report found many organisations had arrangements in place relating to disclosure, evidence suggested that employees fail to speak up through fear of reprisals, concerns that they will not be listened to and that no action will be taken despite highlighting concerns.

Indeed, there are a number of Employment Tribunal cases where individuals have claimed detrimental treatment due to the concerns and disclosures they made (such as Saunders v Westminster Dredging and Scott v Building Management Services).

The Whistleblowing Commission report made a series of recommendations, including:

Amending PIDA to enable a Code of Practice on disclosure arrangements to be issued that courts and tribunals can take into account

That regulators (such as the HSE) include whistleblowing statistics in annual reports

That the range of workers covered by the PIDA protection be expanded upon and include those working overseas.

Of interest, the Commission rejected the introduction of rewards or incentives to encourage whistleblowing as this “undermines the moral stance of a genuine whistleblower”.

Evidence from the Commission’s report has been fed into the Government’s consultation and call for evidence on the current “whistleblowing framework”.

Developing policy and procedures

Although there is no (current) statutory requirement in PIDA for organisations to have a whistleblowing policy or arrangements, the Government does expect public bodies to have a policy in place, while the Combined Code on Corporate Governance obliges UK-listed companies to have whistleblowing arrangements or explain why they do not.

From a health and safety perspective, the HSE states that employers should ensure they have procedures in place that allow workers to raise concerns internally and that:

An existing company procedure, eg near miss reporting, hazard spotting, complaints procedures, may suffice, or could be adapted to allow for reporting

Internal procedures should be simple to use, readily accessible and encourage workers to raise concerns internally as a first step.

The Whistleblowing Commission report contains a draft Code of Practice that is “designed to help employers, workers and their representatives deal with whistleblowing”.

However, Public Concern at Work, in conjunction with the British Standards Institution, has already developed a Code of Practice.

PAS 1998:2008 Whistleblowing Arrangements Code of Practice notes that “regulators and the courts are increasingly looking at the adequacy of whistleblowing and other risk management arrangements to determine whether an offence has been committed by an organisation under regulatory or criminal laws”.

It continues by emphasising that, under PIDA, the adequacy of an organisation’s whistleblowing arrangements is one of the factors that tribunals and courts look at when they consider whether a wider public disclosure is protected under the legislation.

PAS 1998 and the proposed Code of Practice contained in the report reflect similar principles for the effective development of arrangements. The PAS Code of Practice suggests that good arrangements should:

Provide examples distinguishing whistleblowing from grievances

Give employees the option to raise a whistleblowing concern outside of line management

Explain when and how a concern may safely be raised outside the organisation

Provide that it is a disciplinary matter to victimise a bona fide whistleblower and for someone to maliciously make a false allegation.

When developing a policy and procedures, it is worth noting that the term whistleblowing can have negative connotations. Many organisations therefore avoid its use, preferring terms such as “speaking up” or “raising concerns”. Alternatively, they include the practical arrangements as part of ethics, compliance or disclosure policies.

Both the PAS and proposed Code of Practice, if planned and implemented correctly, can overcome the barriers that have been identified as preventing workers from utilising disclosure arrangements that may already be in place.

On this point, PAS 1998 recommends that employees should be consulted with to “clarify the drivers behind the organisation’s whistleblowing arrangements and the language of the policy” but also to “consider asking staff for suggestions as to what the policy should be called”.

Disclaimer: The information provided through Legislation Watch is for general guidance only and is not legal advice. Legislation Watch is not a substitute for Health and Safety consultancy. You should seek independent advice about any legal matter.